Dissolution of Marriage

Through the handling of many dissolution of marriage and related cases MMD has come to the conclusion that a brief explanation of family law procedure in California is helpful. This information is not intended as legal advice.

MARRIAGE COUNSELING AND THE COURT

The decision to initiate a dissolution of marriage case is a serious one, and we encourage clients to carefully think out their actions prior to initiating legal action. We can also refer you to a private counselor.

FILING AND SERVICE OF SUMMONS AND PETITION

Your case is begun by filing with the court a petition requesting that your marriage be dissolved. Unlike the "old" days, no particular "grounds" for dissolution are needed. Instead, just a simple statement that irreconcilable differences have arisen between the parties is sufficient, and cannot be contested. The petition contains statistical information about the parties and their minor children, if any, and includes a list of the orders requested and a list of the property which is to be divided. After the summons and petition are filed with the court, they must be served on your spouse, called the Respondent in the case, by a process server. The Respondent then has 30 days to answer the petition by filing a response, which essentially admits, denies or corrects the data in the petition, and can request different orders. Perhaps you could say: If no response is filed within the required time, we can request entry of a default judgment. The court will set a hearing on the default calendar, with no further notice to the Respondent, and the court will generally grant all the orders requested by the Petitioner.

AUTOMATIC RESTRAINING ORDERS

As soon as a Summons and Petition are filed and/or served on the Respondent, the standard family law restraining orders come into effect automatically in every case. These restraining orders prevent either party from (1) removing any minor child from the state without the prior written consent of the other party or court order; (2) cashing, borrowing against, canceling, transferring, disposing of or changing the beneficiaries of any insurance including life, health, automobile or disability insurance held for the benefit of the parties or any minor child; and (3) transferring, encumbering, concealing or any way disposing of any real estate or personal property, regardless of its character, without the written consent of the other party or a court order, except in connection with the usual course of operating a business or for the necessities of life. Use of community property to pay attorney's fees is specifically allowed and it is not prevented by these restraining orders.

ORDER TO SHOW CAUSE HEARING

In some cases it is necessary for a party to seek immediate or emergency court orders after a case has been filed when the party cannot wait for a trial date, which can be months away. When orders for child support, spousal support, restraining orders or attorney fees are needed, the requesting party can file an Order to Show Cause requiring the other party to appear in court on the requested date so the court can consider the requests. The orders, if granted, last until replaced by later orders.

UNCONTESTED CASES

In cases where the parties can agree on all issues to be decided and the agreement is put into writing, no response need be filed. Such a case can be handled on an uncontested basis, usually with no court appearance by either party.

CONTESTED CASES

In cases where no agreement can be reached on some or all of the issues in the case, the matter is considered contested. Either party can request that the case be put on the waiting list for a trial date, which the court will assign based upon its workload and the complexity of the case.

INVESTIGATION AND DISCOVERY

If there are financial or property issues in a case, it will be necessary to investigate the facts of the case by requesting information from the other party, or from third parties such as banks, employers, accountants, etc. This information can be obtained voluntarily, by subpoena or at an oral deposition.

Both the preliminary and the final declaration of disclosure (DOD) must be served on the other party with certain exceptions. Neither disclosure is filed with the court. A declaration stating service was made of the preliminary and final declaration of disclosure must be filed with the court (see form FL-141). A preliminary declaration of disclosure but not a final declaration of disclosure is required in the case of a summary dissolution (see Family Code Section 2109) or in a default judgment (see Family Code Section 2110) provided the default is not a stipulated judgment or a judgment based upon a marriage settlement agreement. A declaration of disclosure is required in a nullity or legal separation action as well as in a dissolution action.

Another form that is exchanged with the DOD is the schedule of assets and debts (SAD). This form must be served by each party on the other, outlining all financial details whether the property is believed to be community or separate in nature. You must list all your known community and separate assets or debts. You must also include assets even if they are in the possession of another person, including your spouse. If you contend an asset or debt is separate, you may place a P (for Petitioner) or R (for Respondent) in the first column (separate property) to indicate to whom you contend it belongs.

All values should be as of the date of signing the declaration unless you specify a different valuation date with the description. For additional space, use a continuation sheet numbered to show which item is being continued. As with both forms discussed, they should not be filed with the court - the forms even state: "THIS FORM SHOULD NOT BE FILED WITH THE COURT"

RESTORING WIFE'S MAIDEN NAME

A woman obtaining a dissolution of marriage may have her maiden name or any former married name restored upon entry of the judgment of dissolution upon specific request.

ESTATE PLANNING

In many cases, some basic estate planning work needs to be considered at the time a dissolution case begins. You should remember that any existing wills or trusts you may have may not be affected by a dissolution of marriage, nor are life insurance policies. If you have never had a simple will, now is an excellent time to consider having one drawn. Lastly, if you hold title to real estate as a joint tenant with your spouse, you should consider altering that arrangement promptly to provide for alternate beneficiaries.

HEALTH INSURANCE

A non-employee spouse covered by a spouse's group health plan at work can usually continue that coverage for 36 months following the finality of the judgment by paying the premium.

Former spouses may be entitled to certain benefits under Title 10 of the United States Code. There are special rules that govern the entitlement of former spouses of military members and civil service employees with respect to continuing health care benefits after dissolution.

FINALITY OF THE JUDGMENT

After your trial, or the settlement of your case, the court will enter a judgment resolving all the issues of your case and dissolving the marriage. However, you are not legally single until the judgment becomes final, which will occur immediately if at least six months has passed since the petition was served on the Respondent. The judgment will clearly show the date it becomes final.

RECORD KEEPING

We cannot stress enough the importance of keeping records when any financial issues are present or when the court has made financial orders for support. If disputes arise later about late or missing payments, you must be able to produce records showing payments made or received.

CONCLUSION

This brief explanation of dissolution procedure is not designed to replace our office conferences. It is simply a guide to some of the issues that arise in the course of divorce and custody matters.